48 F. 382 -

48 F1d 382

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Case Text

nDJl:RALREPORl'ER,

vol. 48.

.

::

i

ant's invention

is that. it is in the door of aburglarproof.. safe, combining the elements claimed, all actIng together so as to i'ander the door, when closed, impervious'to the admission of explosive substances. The objection to this construction is: thatit is not what the patentee claimed, nor what the patent'office allowed. See McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct; Rep. 76, where it is said: IlWhile the have b.een utltortunate in the'language he has ehOSEln to express his8ciual invention, and may have been en-titled to a broader claim, we ,are not at UbertY', without running counter to the entire current of authority in this court, to construe such claims to include more than their imports·... Nothing is better settled of patents than langu.age that the :patentee may claim the whole or only aparto.f his invention, and that, if he only describe and. claim a part, he is presumed have abandoned the res,idue to the pUblic·. 'fhe object of the patent law in requiring the patentee' to ·particularly point out and distinctly claim the part, improvement, or'combination wllich he claims as his:jnvention or discovery,' is not only to secure to him all to which he is entitlE-d, but to apprise the public of what is. still open to them, The claim is the measure of bis right to relief; and, while the specification may be referred to toUmit the claim, it can never be made available to expand it." . .

As the bill claims a patent for an improyement in burglar-proof safe locks, which is not supported by the letters patent pr()U'ered, and as the infringement charged is' wholly incompatible with complainant's patent, as shown by his letters patent, the demurrer is well taken, and should be sustained; and it is so ordered.

HAUGHEY .,. LEE tit

ale

tt4'1'B1M'8 lOB

The of patent No. 879,644, of.llarch 20, 1889 W&II for All "Interfering d. vice. " to be placed around a horse's leg to protect it from contact with the hoof of the other leg, and to widen the stride, consisting of the pendant of "suitable material, 100"11 jointed to the strap passing around the leg of the horse." Devices for this purpose were old, and had been constructed in the form of a strap with leather loops, formillg "strikers, "..,.-Le., the part adapted to hit t!J.e other hoof,_ttllOhed. standing out 1Iorizontallr towards the other leg, and of a pliable material wound round the lel£ with the enlls inside, and projecting horizontally towards the other leg! to form tbe .·triker." A. .trap having a pendant had been attached to the leg or horses to Prevel',\t .stall kicking. Held. ill. view of the state of the art, no invention W&II shown in ohanRinR the position ottbe"liItriker" from a horizontal to a pendent position., : .

BUTLER; J. The for infringement' ,of ,patent No. 379,644, dated March 20, 1889,-"interfering device for The claittl. is as follows: "The interfering deVice, consisting of the pendant made of rubber, wood. or other,suitable material, Jooselyjointed to the strap passing around the leg of a horse, sUbstantially inthe manner shown, for the p.urpOSeB set forth."

The answer attacks the patent, and denies infringement. To support the former appeal is made to the state of the art. From this source it appears that interfering devices are of great antiquity,and of various forms, all having the same object,-protectionof the leg, and spreading the stride. One of the earliest was the "boot," made of leather or other pliable substance; padded, and fitted to the leg,-the main purpose of which was to protect the leg. Even this, however, was supposed to exert some influence on the step. Following it came various other contrivances, the dominant object of which was to produce a wider "spreading." All' these devices are still employed. Some: con8istof a strap strung with balls of wood, gum, or other similar material, made to buckle around the leg, above or below the pastern-joint. These balls stand out a little further than the "boot';' Others consist of a strap with leather loops attached to the outward side, two to five inches long. These loops at first are stiff, standing 'out horizontally, and are struck more readily than the "boot," or balls., .' After a little use the loops hang, though not perpendicu:' larly. Otoersare made of bands of platted straw, of gum pipe, and similarly pliable substances, and so fitted to the leg that the two ends form a "striker." It is unnecessary to extend the enuml'ration. 'fhe object in all Cases is to protect the leg, and induce a wider step. By this meanS it is sought to cure the vice of interfering. The projection on the strap is called a "striker." A strap with pendent chain, or rope, has long been used to prevent kicking in the stall. This is attached to the leg in the same manner as the' other devices. The chain is of various lengths, usually a .foot or more. The defendant has also shown, (if the testimony is credible,) the use of an interfering device made of a strap and pendent striker, loosely hung. The· witnesses testify to having seen it used at a race-course near Norristown.. One witneBstestifies to having seen a similar device,-the pendant being of gUlD or wooden balls,-at the stable of Mr. Hitner, iil the same viuinity. One witness, a harness-maker, in Philadelphia, testifies that he assisted to' make a number of similar devices, for a farrier, the strikers of which consisted of gum pipe-illustrated by an exhibit in proof, Another testifies that he saw these in the shop-window made,. -The witnesses who testify to the devices used near Norristown, speak of a period 20 yearspastj and the same is true of the witnesseiiwhb testify to the Philadelphia device. The plaintiff called a number of persons, familiar with the general subject, who say they never saw any such devices. This does not, however, disprove their existence. I should hesitate to disregard the testimony of the plaintiff's witnesses, or to accept the suggestion that these devices were experiments

FEDERALREPOR'l'ER, .'v:oL

48.

,Yet I would hesitate to declare the pateqt invalid on thistestiltlQny. The case may be put on safer ground. lIn viewof,the other devices shown-about whose existence there is no question,-it seems clear that the slight change in form which the plaintiff made did not require invention. He simply altered the "striker" from a horizontal to a perpendicular position. .He found it standing out latetalIy, and loosenedit so as to hanp;. This 'Was all. Surely no invention was required to do it. Any mechanic to whose line the work belonged (or indeed any bllndy person, though not a mechanic) could do this. The idea or conception: that this ch.ange might be beneficial, was not patentable. The question is simply, was invention required' to make the change? In myjudp;rnent it was not. The kicking device exhibited a method of doing it. This device indeed required nothing but shortening the chain to make it correspond in every essential respect with the plaintiff's. Applying. this to a horse in motion, instead of one standing in his stall, is not eyena .new use. If new it would be analogotis to the 01 d. Patentsare constantly overturned for want of invention,. where ·its absence is not soelear. The later volumes of reports are full of stich casesl eight are eontained in the last issue-132 U. S. It is sufficient to cite a few of them·. HoUi8ter v. Manufacturing (Jo., 113 U. S. 59, 5 Sup. Ct. Rep. 717; Thompson v. BWJselier,1l4 UIS. 1, 5 Sup. Ct. Rep. 10421 Petln81!lvo:nia R. C().v. Locomotive Engine Safety 'Fruck 00.,110 U. S.490, 4Sup. Qt. Rep ..220; v.Manufacturing Co.,nou. S.·131,4 Sup. Ct. Rep. 3.8; Gardner v. Herz, .1l8U. S. 180, 6 Sup. Ct. Rep. 10.27; Weir v. 125 U. S. 98,8 Sup. Ct. Rep. 869; Holland v. Shipley, 127 U.S. 396,8 Sup. Ot. Rep. 1089;Aron v. Railioay.Oo., 132 U.S. 84, 1QSup. Ct. Rep. 24; Dayv.Rail'lJ}ay 00.,J32U. S.98, 10 SUJ:.l.Ct. Rep. 11; .Roemerv. Bernheim, 132U..S.:·103, 10 Sup. Ct. Repd2; Watson Y. Railway Co., 132 U. S. 161, 10.sup. Ct, Rep. 45·. It is'l3aid by !:lome of the ;plaintiff's witnesses that his striker taps the leg to which it is attached, as well as the other, and his cqunsel urge this as important. The specifications say nothing aboutit, but ascribe the device's s\lperiority to. the fact that it strikes tbeopposite leg, by a "swingiQ.gtangential nlotion." The claim also is silent on the subject. The counsel (as we understand) concede that the device would be old but for the capacity to perform this additional function·. ' If that is true the patent is clearly void, because the claim embraces devices that will not perform it; andie therefore too broad. But aside from this, the tapping of the leg referred to, is unimportant. Every device used strikes and rubs the leg to which it is attached. Whenever the projection is hit by the opposite leg the blow is communicated to the other. The effect must necessarily be similar to the supposed tapping. 1 would rather sustain the patent than overturn it, (1 feel this inclination in all cases,) but the proofs will not allow me. The bill must be dismissed, with costs.

COLT t1. COLT.

885

CoLT

et 01.

t1. COLT

et 01.

(CircuU Court, D. Connecticut. July 22, 1881.)

I.

CoNSTRUOTION 011' WILLS-CODIOIL-REVOOATJON 011' BEQUEST.

A will gave to each of several legatees a specified number of shares of stock in a manufacturing company, includin/il" a bequest of 500 shares to testator's brother for life, and then provided that the residue of such stock owned by the testator ",t the time of bis deatb "shall be divided among tbe several persons and parties to whom I have hereinbefore given legacies of stock, in the ratio and proportion in wbich said legacies of stock are hereinbefore given; * * * meaning that my residullryestate in said stock sballbe shared by tbe same persons to whom I have /il"iven specified legacies in stock, aDd in precisely the same ratable proportions." By a codicil testator provided that" I also revoke and cancel, for reasons growing out O,f his late unbrotherly conduct towards me, the legacy of 500 shares of the stock * *, * '/il"iven in the aforesaidwiU" to his brotber. Hela, that the proportional part of tbe residuary stock which would fall to the brotber by virtue of the specifl.o was separate and independent from it, and hence was not revoked by the , revocation of tbe latter.

B.

SUfE-REVOOATION 011' ,TRUST.

Tbe will also gave to the executors and their successors 500 sbares of such stock, "in trust for the issue"of sucb brother, "tbe profl.ts and dividends thereof to be applied to the education ,of his said issue * * * ,until the youngest surviving of said issue ,sball have reacbed the age of 21 years," when the stock and the accumulations thereof should go to them in equal proportions absolutely. By a second codioil testator gave to each child of the said brother a legacy of $100, and then declared that "I berebycancel and wholly revoke any and all other legacies or clevises by' Die' heretofore at any time made to or for the use and benefit of said cbil<lren, or any of them; - -*and I hereby give"l to certain children of a different brother "the property, to-wit, 500 sbares" of sucb stock, "whicb in and by said origilial will isbeq,ueathed to my executors in trust for the use" of the children of the first mentioned brother, "to be beld by my executors for said cbildren in the same manner, and subject to tbe same limitations, as are provided in said original will in the bequest to tbe chilCiren" Of the first-mentioned brotber. Held. that this was not a mere,substitution of the c/lildrfiln of one brother for tbose of the other, the title remalDillg ill the trustees, but was a complete revocation of all legacies given to the one set of children, including their proportional part of the residue of stock, and operated to divest tbe title of the trustees, and revest it in them in favor of the other set; and hence this change did not carry with it any proportional part of the residue of stock, under the provision of the original will. Where a will bequeaths property to tj:J.e executors, in trust for certain legatees, and an action is brought byanotber legatee to construe tbe will, service upon the executors Simply as such is sufficient to also make them parties in their capacity as trustees, and In that capacity they are bound by the decree.

8.

BAJ,lE-SUIT TO CONSTRUE-P.a.RTJES-EXEOUTORS AS TRUSTEES.

f. JUDGMENT-COLLATERAL ATTACK.

In an action in a state court which had jurisdiction of the subject-matter, an order was made finding as facts that certain minor defendants and their guardian had been served with process, tbat "the parties appeared by their respectiye counsel, an'd tbe said mil/ors were dUly represented by their guardians." Subsequent orders and decrees recited tbat the "respondents" and the "parties .. appeared by their counsel, filed their answer, eto. Beld that, while these orders and, deorees stand unimpeached by direct proceedings in the state court, tbe questions therein determined cannot be raised in an independent suit in a federal court,' on the ground tbat the minors were not in fact represented by counsel. In an action in a state court having jUrisdiction of the subject-matter, an order which finds that certain minor defendants "were dUly represented by their guardian" is conclusive, until set aside by direct proceedings, that they were prpperly represented; and, in a collateral action, a federal court will not entertain gestion that, under the state law, the general guardian had no power to represent tbe minors, and that they were not bound by the decree because no guardian ad litem was appointed. Aftirmed in 4 Sup. Ct. Rep. 553.